The Third Department Cases 12-31-14

The Court decided 5 cases dealing with workers compensation last week.

In Matter of Dag Hammarskjold Tower, Appeals (1) from a decision of the Workers Compensation Board, filed May 30, 2012, which ruled that claimant did not violate Workers Compensation Law § 114, and (2) from a decision of said Board, filed August 20, 2013, which denied the employers application for full Board review.

Claimant sustained a compensable work-related back injury in 2005 and was awarded workers compensation benefits. The employer and its workers compensation carrier (hereinafter collectively referred to as the employer) alleged that claimant had violated Workers Compensation Law § 114-a by knowingly misrepresenting his lack of work activities while receiving benefits. The Workers Compensation Board, reversing the decision of the Workers Compensation Law Judge, determined that claimant had not violated Workers Compensation Law § 114-a and continued compensation benefits. The employers subsequent request for full Board review was denied. These appeals ensued. The Court affirmed. Workers Compensation Law § 114 (1) provides that if claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation. It is within the purview of the Board to assess witness credibility, and its decision as to whether a claimant violated Workers Compensation Law § 114 will not be disturbed if supported by substantial evidence (see Matter of Hodzic v TTSI, Inc., 117 AD3d 1379, 1380 [2014]; Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108 AD3d 914, 915 [2013]).

Here, claimant acknowledged that he spent most of his time at a membership cafa© and occasionally, among other things, unlocked the cafa© door in the morning and swept the premises in exchange for the owner, his cousin, allowing him to sleep in a room above the cafa© following marital difficulties. According to claimant, he received no compensation for any minimal activity that he performed at the cafa©. The employers surveillance videos and testimony of its private investigator did not contradict claimants testimony, which primarily show claimant sitting or standing outside the cafa© smoking, talking on a cell phone or drinking coffee. Inasmuch as the Board found claimants testimony to be candid, consistent and truthful, there is substantial evidence supporting the Boards decision not to find a violation of Workers Compensation Law § 114, and we will not disturb it despite the existence of evidence that would support a contrary result (see Matter of Hodzic v TTSI. Inc., 117 AD3d at 1380; Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108 AD3d at 916; Matter of Monzon v Sam Bernardi Constr., Inc., 60 AD3d 1261, 1262-1263 [2009]; Matter of Feisthamel v Marcy Correctional Facility, 26 AD3d 554, 555 [2006]).

To the extent that the employer challenges the denial of its application for full Board review on the ground that it was denied solely by the chair on behalf of the Board, we find that such challenge is moot given that a three-member panel subsequently considered and denied that application for full Board review as set forth in a decision filed June 23, 2014 (cf. Matter of Scalo v C.D. Perry & Sons, Inc., 112 AD3d 1077 [2013]).

Matter of Pankiw , Appeal from a decision of the Workers Compensation Board, filed February 8, 2013, which ruled that claimants case was not truly closed for the purpose of shifting liability to the Special Fund for Reopened Cases pursuant to Workers Compensation Law § 25-a. In October 2004, claimant suffered work-related injuries to his back and left shoulder and was awarded workers compensation benefits. Claimants treating physician opined in 2007 that claimant had sustained a 20% schedule loss of use of his left arm. In 2008, claimant raised the issue of a consequential injury to his right shoulder. By stipulation of the parties, including the Special Fund for Reopened Cases, which was liable for payments related to a 1997 injury to claimants right shoulder, a Workers Compensation Law Judge amended the 2004 claim to include a consequential injury to the right shoulder, found that claimant had a 30% schedule loss of use of that shoulder and apportioned the claim related to the right shoulder pursuant to the stipulation.1 In November 2011, claimant filed a request for further action, stating that he was now disabled and was not receiving compensation. A Workers Compensation Law Judge transferred liability for the claim to the Special Fund pursuant to Workers Compensation Law § 25-a. Upon review, the Workers Compensation Board reversed and the employer and its carrier appeal.

The Court affirmed. Liability for compensation shifts to the Special Fund when an application to reopen a case is made after a lapse of seven years from the date of injury and three years from the date of the last payment of compensation, upon a showing that the case has been truly closed (Matter of Anticola v Tops Mkts.,117 AD3d 1373, 1374 [2014] [internal quotation marks and citations omitted]). Whether a case is truly closed is a factual determination for the Board to resolve based primarily upon whether any further proceedings are contemplated with regard to issues concerning the payment of compensation (Matter of Hosey v Central N.Y. DDSO, 91 AD3d 993, 994 [2012] [citation omitted]; see Matter of Rathbun v DElla Pontiac Buick GMC, Inc., 1( Although the stipulation initially attributed the 30% schedule loss of use to claimants left arm, the parties made a correction in an amended stipulation to reflect that the parties intended to stipulate to a schedule loss of use of claimants right arm. There was no stipulation as to claimants left arm and the issue was not addressed by the Workers Compensation Law Judge. 61 AD3d 1293, 1294-1295 [2009]).

Here, although claimants treating physician opined in 2007 that claimant had a 20% schedule loss of use of his left arm, this issue was not addressed as of the date of the carriers request to shift liability to the Special Fund. Accordingly, the Boards decision that the case was not truly closed is supported by substantial evidence (see Matter of Hosey v Central N.Y. DDSO, 91 AD3d at 994-995; Matter of Carubia v Colt Indus. [Crucible Steel], 12 AD3d 827, 828 [2004]; Matter of Knapp v Empire Aluminum Indus., 256 AD2d 811, 811-812 [1998]). We have reviewed the remaining contentions and find them to be unpersuasive.

Matter of Cruz , Appeal from a decision of the Workers Compensation Board, filed April 1, 2013, which ruled that the self-insured employer was not entitled to take an offset under Workers Compensation Law § 29 against the schedule loss of use award.

Claimant was involved in an automobile accident while she was working for the self-insured employer. She filed an application for workers compensation benefits based on injuries sustained in the accident and was out of work from October 23, 2008 until December 28, 2008. A Workers Compensation Law Judge (hereinafter WCLJ) established her claim for work-related injuries to her right hip, right arm, neck and back, and awarded her benefits of $550 per week during the time that she was out of work. Claimant subsequently settled her third-party action with the employers consent. Thereafter, the parties stipulated that claimant had a 15% schedule loss of use of her right arm and a WCLJ awarded her benefits for 46.8 weeks in accordance with Workers Compensation Law § 15 (3) (a). The WCLJ directed the employer to pay $550 per week for the 9.4 weeks immediately following claimants injury, listed as temporary total disability, and $550 per week for the next 37.4 weeks, listed as permanent partial disability. In computing the net schedule loss of use award paid to claimant, the employer deducted, in addition to payments already made and counsel fees, a sum of $3,310 representing an offset from the third-party settlement. Claimant objected to the computation on the ground that the employer was not entitled to take an offset from the third-party recovery against the schedule loss of use award. The WCLJ agreed and the Workers Compensation Board upheld this decision. The employer appeals.

The Court affirmed affirm. Workers Compensation Law § 29 provides that a carrier or self-insured employer that pays workers compensation benefits has the right to offset future payments of compensation against proceeds recovered by a claimant in a third-party action as long as such payments do not constitute first party benefits made to reimburse a claimant for basic economic loss or payments made in lieu of first party benefits under the No-Fault Law (see Workers Compensation Law § 29 [1], [1-a], [4]; Insurance Law § 5102 [a], [b]; 5104 [a]; see also Matter of Brisson v County of Onondaga, 6 NY3d 273, 277-278 [2006]; Dietrick v Kemper Ins. Co. [American Motorists Ins. Co.], 76 NY2d 248, 251 [1990]).

Basic economic loss includes payments, not exceeding $50,000, for items such as lost earnings of up to $2,000 per month for three years after the date of the accident (see Insurance Law § 5102 [a] [2]; see also Matter of Brisson v County of Onondaga, 6 NY3d -at 278; Matter of Figelman v Goldfarb, 257 AD2d 721, 722 [1999], lv denied 94 NY2d 753 [1999]). Payments that are considered reimbursement for basic economic loss or that are made in lieu thereof are not subject to the offset provisions of Workers Compensation Law § 29 (see e.g. Matter of Allen v Enterprise Rent-a-Car, 38 AD3d 970, 971 [2007], lv denied 9 NY3d 802 [2007]; Matter of Figelman v Goldfarb, 257 AD2d at 723). The dispositive question presented on this appeal is whether that part of the schedule loss of use award associated with claimants 9.4 weeks of lost time falls within this category, despite the fact that it was initially labeled as payment for temporary total disability.

The Court concluded that it does. The employer contends that this portion of the schedule loss of use award corresponds to claimants actual lost time and that the offset provisions apply because the $550 weekly portion of the award exceeded the $2,000 per month threshold and represented earnings during the first 9.4 weeks (see Insurance Law § 5102 [a] [2]). However, [t]he weekly rate and number of weeks in the schedule are merely the measure by which an award is calculated and, lthough a decision by a WCLJ or the Board lists the award as covering certain dates, liability for a schedule award arises as of the date of the accident and payment of the schedule award is not allocable to any particular period of disability’ (Matter of Allen v Enterprise Rent-a-Car, 38 AD3d at 971, quoting Matter of Briggs v Village of Hamilton, 136 AD2d 442, 444 [1988]; see Matter of Schmidt v Falls Dodge, Inc., 19 NY3d 178, 182 [2012]). Here, regardless of how the award was labeled, claimant received only 46.8 weeks of compensation that is, the total amount to which she was entitled for a 15% schedule loss of use award under Workers Compensation Law § 15 (3) (a). Inasmuch as claimant received only a schedule loss of use award, the award is not allocable to any particular time period, and the fact that the monthly rate of the award exceeded the $2,000 threshold in Insurance Law § 5102 (a) (2) is irrelevant to the employers right of offset. Accordingly, there is no basis to disturb the Boards decision.

1. On appeal, the employer concedes that the remainder ofthe schedule loss of use award is not subject to any offset.

2. The employer contends that Matter of Allen v Enterprise Rent-a-Car (supra) expressly distinguishes between the portion of a schedule loss of use award associated with a period of temporary total disability and the portion associated with a period of permanent partial disability (id. at 970-971). However, we note that in Matter of Allen v Enterprise Rent-a-Car (supra), unlike here, the period of temporary total disability associated with certain schedule loss of use award payments occurred more than three years after the claimants injury, setting it outside of the statutory definition of loss of earnings from work (see Insurance Law § 5102 [a] [2]).

In Matter of Connolly , the carrier appealed a decision of the judge and Board establishing a claim for an occupational disease. The Court reversed and denied the claim. For approximately 23 years, claimant worked at a garbage recycling and energy production facility in the Village of Westbury, Nassau County owned and operated by Covanta Energy Corporation. During this time, he worked as a maintenance mechanic, as well as a maintenance planner, and frequented all areas of the plant, including the boiler house where the garbage was burned and the cooling tower where water was circulated to cool the equipment. In December 2010, claimant coughed up blood and, following a lung biopsy in March 2011, he was diagnosed with allergic bronchopulmonary aspergillosis. This condition developed as a result of claimants exposure to the aspergillus fungus, a type of mold.

Claimant filed an application for workers compensation benefits claiming that he sustained an occupational disease by his inhalation of fungus and mold at work. Covanta controverted the claim upon the ground that, among other things, claimant had not produced medical evidence of a causal relationship between his condition and his employment.

Following a number of hearings, a Workers Compensation Law Judge (hereinafter WCLJ) disagreed and concluded that claimant sustained an occupational disease entitling him to receive benefits. The Workers Compensation Board upheld this decision and Covanta now appeals.

Initially, Workers Compensation Law § 2 (15) defines an occupational disease as disease resulting from the nature of employment and contracted therein (see Matter of Satalino v Dans Supreme Supermarket, 91 AD3d 1019, 1019 [2012]). In order to demonstrate that a condition is compensable as an occupational disease, a claimant must establish a recognizable link between his [or her] condition and a distinctive feature of his [or her] occupation through the submission of competent medical evidence (Matter of Mellis v New York State Dept. of Corrections, 9 AD3d 766, 767 [2004] [internal quotation marks and citations omitted]; see Matter of Dosztan v Kraft Foods, Inc., 113 AD3d 1007, 1008 [2014]; Matter of Sandell v Frito Lay, Inc., 112 AD3d 1242, 1243 [2013]).

Here, claimant maintained that he was exposed to the aspergillus fungus while working in the cooling tower claimant observed green plant life growing, and also in the boiler house under the ram feeder table, where there was decomposing garbage. Based upon claimants occupational history, Richard Gordon, claimants treating pulmonologist, opined that claimants respiratory condition was causally related to his exposure to the aspergillus fungus at work. Gordon acknowledged, however, that the aspergillus fungus is a common source of pulmonary problems and can be found almost anywhere and, further, that he was unable to pinpoint exactly where or when claimants exposure occurred, or that it was definitely at Covantas plant. An employer witness testified there was algae present at the plant but no fungus. (There is no dispute that his development of allergic bronchopulmonary aspergillosis was due to his exposure to the aspergillus fungus.)

Carl Friedman, a pulmonary specialist who conducted an independent medical examination based upon a review of claimants medical records, opined that claimants respiratory condition was not causally related to his employment. Because the aspergillus fungus is ubiquitous and is found in soil everywhere, Friedman testified, claimant could have been exposed in an industrial setting or at home in his own backyard. Friedman further indicated that it could not be determined exactly when claimant was exposed or, given claimants clinical history, the date of onset of the disease. Based upon the foregoing, claimant has not demonstrated that his contraction of allergic bronchopulmonary aspergillosis was attributable to a distinctive aspect of his job as a maintenance mechanic and/or planner (see Matter of Mellis v New York State Dept. of Corrections, 9 AD3d at 767-768; Engler v United Parcel Serv., 1 AD3d 854, 855 [2003]). Given the commonality of the aspergillus fungus, as acknowledged by both medical experts, claimant could have been exposed to it anywhere at any time. Moreover, to the extent that the mold may have been present in claimants work environment, it was not a condition specific to claimants job (see Matter of Martin v Fulton City School Dist., 300 AD2d 901, 902 [2002]; Matter of Morgan v Olean City School Dist., 292 AD2d 694 [2002]). Consequently, the evidence was insufficient to establish that claimant sustained an occupational disease, and the Boards decision must, therefore, be reversed.

In Matter of Bennett, Appeal from a decision of the Workers Compensation Board, filed July 15, 2013, which ruled, among other things, that claimant did not give timely notice of injury and denied his claim for workers compensation benefits Claimant worked as a school custodian for the self-insured employer for approximately 15 years. In 2008, he began to experience problems with his elbows and knees, and sought medical treatment. He ended up having surgery on both elbows and both knees. On September 27, 2009, he filed a claim for workers compensation benefits based upon injuries to his bilateral elbows and left knee attributable to repetitive use of physical labor going up and down the stairs, lifting heavy boxes, [and] shoveling snow. By reserved decision dated September 10, 2010, a Workers Compensation Law Judge (hereinafter WCLJ) established the claim for causally related injuries to claimants bilateral elbows and left knee.

Thereafter, the employer filed an RFA-2 form seeking a further hearing to establish the date of injury and to resolve the issue of notice under Workers Compensation Law § 18, since these issues had not been decided by the WCLJ. The case was restored to the hearing calendar for this purpose. By reserved decision dated January 7, 2013, the WCLJ reestablished the claim or causally related injuries to claimants bilateral elbows and left knee. The WCLJ then issued an amended reserved decision dated January 10, 2013 that essentially adhered to the prior decision, but set forth the date of disablement as January 19, 2009 and also found that claimant sustained an occupational repetitive injury to the right knee. The employer appealed to the Workers Compensation Board, which reversed the WCLJ and ruled that claimant sustained a gradually accruing work related accidental injury to his elbows bilaterally and knees bilaterally with an accident date of March 13, 2008. The Board ultimately denied the claim due to claimants failure to comply with the notice requirements of Workers Compensation Law § 18. Claimant now appeals.

The carrier filed an untimely appeal in the matter that was denied.

Initially, claimant contends that, under the doctrine of res judicata, the WCLJs September 10, 2010 reserved decision precludes further consideration of the issue of notice under Workers Compensation Law § 18. Given that the cited precedent is a prior decision in this case, the applicable doctrine is law of the case. This Court, however, has acknowledged that the law of the case doctrine has never been held applicable to Work[ers] Compensation Law decisions at the administrative level, particularly in view of the broad powers conferred upon the Board by Workers Compensation Law § 123 (Matter of Spaminato v Bay Transp. Corp., 32 AD2d 345, 347 [1969]). In view of this, the WCLJs September 10, 2010 reserved decision did not foreclose further consideration of this issue by the Board. Turning to the merits, Workers Compensation Law § 18 requires a claimant seeking workers compensation benefits to provide the employer with notice of the claim within 30 days of sustaining a compensable injury (see Matter of Dixon v Almar Plumbing, 111 AD3d 1230, 1232 [2013]; Matter of Dudas v Town of Lancaster, 90 AD3d 1251, 1252 [2011]). The failure to give timely notice may be excused by the Board where notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced (Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d 1402, 1403 [2009]; accord Matter of McCarthy v Verizon Wireless, 83 AD3d 1352, 1353 [2011]).

Significantly, [t]he Board is not required to excuse a claimants failure to give timely written notice even if one of these grounds is proven; the matter rests within the Boards discretion (Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d at 1403; see Matter of Dudas v Town of Lancaster, 90 AD3d at 1252-1253).

Here, claimants injuries occurred over the course of many years working as a custodian and were not the result of a single accidental event. Notably, he had surgeries to his right elbow in July 2008, his left elbow in June 2009, his left knee in August 2009 and his right knee in May 2010. He first saw an orthopedist and sought medical treatment for his elbow and knee problems in March 2008. Although he knew his problems were related to the type of work he performed, he did not inform his employer that his injuries were work related while he was undergoing treatment. Indeed, it was not until September 27, 2009, when claimant filed his claim, that the employer was put on notice. In view of the foregoing, substantial evidence supports the Boards finding that the date of disablement was March 13, 2008 and that claimant failed to file his claim within 30 days as required by Workers Compensation Law § 18. Moreover, given that claimant began receiving medical treatment a year and a half before filing his claim and had his first surgery more than a year before such time, without the employer knowing that his injuries were work related and having an opportunity to investigate, we find no abuse of discretion in the Boards failure to excuse the untimely notice (see Matter of Dixon v Almar Plumbing, 111 AD3d at 1232; Matter of Dudas v Town of Lancaster, 90 AD3d at 1253). Therefore, the Court found no reason to disturb the Boards decision.

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